Fani Willis Could Have Brought a Much Simpler Case

D onald Trump has been fortunate in his enemies. Few of those enemies have done more to excuse Trump’s misconduct than Fulton County district attorney Fani Willis.

Criminally prosecuting Trump was always going to be politically controversial. It was always going to face legal, political, and practical hurdles. Doing so in the midst of a presidential campaign represents such a dramatic interference in the political system that it needed to be done only on the soundest and most unquestionable basis.

Three of the four criminal cases against Trump faced headwinds that were already blowing when the prosecutors set to work, although in each case, they compounded their problems. Alvin Bragg’s hush-money case in New York and Jack Smith’s January 6 case in D.C. were both built around novel and dubious extensions of the law, and stripping out all the questionable charges would leave nothing standing. Both cases were also brought years after the evidence to charge them was known. Smith’s Mar-a-Lago boxes case in Florida had legally the strongest charges and involved bizarrely indefensible behavior by Trump, but the case faced two sets of problems: the practical issues of any case with classified documents at the heart of the evidence, and the air of selective prosecution from Hillary Clinton and Joe Biden being let off the hook for similar misconduct. Add to that the looming specter that a federal prosecution could be stopped or cleared by a pardon by a new Republican president and the defects in Smith’s special-counsel appointment, and it is clearer why the obstacle course has trapped Smith. Meanwhile, Bragg’s conviction yielded such a damp squib politically because it was so obvious that the case was an entirely politically motivated nothingburger.

Also, only Bragg so far has prevented his case from escaping from the hothouse of deep-blue judges. Smith’s D.C. case made it to the Supreme Court, where its overreaching probably helped goad the Court into its excessively broad reading of presidential immunity. His Florida case ran immediately into a conservative, Trump-appointed district judge. And the Georgia case filed by Willis has been stayed completely by the Georgia appellate courts. In Florida and Georgia, these were predictable encounters for which prosecutors should have prepared.

But the Georgia case didn’t have to go that way.

The big thing that brought Willis’s case down had nothing to do with the case itself: her employment of her boyfriend, Nathan Wade, as the special prosecutor to run the case. But the charges were also a serious overreach, resulting already in three of the 13 counts against Trump being dismissed because they were (like the charges in the Bragg case) compound crimes that incorporated other unspecified statutes in violation of the Georgia constitution.

In their haste to get Trump into the same case with a bunch of co-defendants charged with things that didn’t personally involve Trump, Willis and Wade also insisted on indicting Trump for a RICO conspiracy. As I’ve explained previously, that’s also too-clever lawyering aimed at making the charges less specific:

In a conspiracy case, the government has to prove that you agreed with other people to commit a crime, even if no crime was committed or attempted, so long as overt acts prove the existence of a conspiracy and your agreement to it. That’s a hybrid because you don’t have to have committed the crime itself. But a conspiracy typically still requires the government to say what the crime is that the conspirators agreed to commit. . . .

In a RICO case, the government has to prove more: that you agreed to be part of a criminal enterprise, and that the criminal enterprise was conducted by committing particular crimes. But there is a way around that, too: Willis has alleged a RICO conspiracy, in which she argues that she doesn’t have to allege that the enterprise actually committed any particular crimes or agreed to commit any particular crimes. They just have to have agreed to an enterprise for a purpose that isn’t a crime, and agreed that the enterprise would use criminal means. This allows her to string together a bunch of different acts, some of them legal, some of them crimes, some of them conspiracies to commit crimes.

But what if Willis had brought a simple, rifle-shot indictment with no RICO, no conspiracy, no compound crimes, and severed from the 28 counts aimed at co-defendants? Her case is in state court, under state law, which properly handles election-related offenses and is beyond the reach of presidential pardons, Trump-appointed federal judges, or changes in the management of the Department of Justice. Let’s look back at the indictment and consider the nine remaining non-RICO charges against Trump. Three are direct, substantive charges. The other six are conspiracy charges but entail conspiracies to commit a particular crime. As we’ll see, there is actually one charge in this indictment that was a real crime. Willis and Wade could have brought that charge much sooner, much cleaner, and maybe gotten Trump to trial a long time ago.

The Direct Charges

Count Twenty-Seven: Filing False Documents. Notice right away that this is unlike Bragg’s charge of merely creating false business records in Trump’s own private checkbook and in private bills from his own lawyer. Trump stands accused, along with his lawyer John Eastman, of filing a complaint in federal court on December 31, 2020, making false allegations. The complaint was verified, which means that Trump had to attest to the truth of its contents. The indictment charges a violation of O.C.G.A. § 16-10-20.1(b)(1), which makes it a crime to “knowingly file, enter, or record any document in a public record or court of this state or of the United States knowing or having reason to know that such document is false or contains a materially false, fictitious, or fraudulent statement or representation.” It alleges that the verified complaint contained six sets of false allegations:

1. That “as many as 2,506 felons with an uncompleted sentence” voted illegally in the November 3, 2020, presidential election in Georgia;

2. That “at least 66,247 underage” people voted illegally in the November 3, 2020, presidential election in Georgia;

3. That “at least 2,423 individuals” voted illegally in the November 3, 2020, presidential election in Georgia “who were not listed in the State’s records as having been registered to vote”;

4. That “at least 1,043 individuals” voted illegally in the November 3, 2020, presidential election “who had illegally registered to vote using a postal office box as their habitation”;

5. That “as many as 10,315 or more” dead people voted in the November 3, 2020, presidential election in Georgia;

6. That “[d]eliberate misinformation was used to instruct Republican poll watchers and members of the press to leave the premises for the night at approximately 10:00 pm. on November 3, 2020” at State Farm Arena in Fulton County, Georgia.

Notice the difference as well from Smith’s D.C. case. As I’ve noted many times, at the core of any fraud case or false-statements case is the bedrock concept of materiality: The law criminalizes falsehoods that (1) can influence somebody who (2) doesn’t already know the truth. Telling political lies to people in Congress who know you’re lying isn’t that. But signing your name under specific false statements in a court document asking for an emergency injunction? That’s a meat-and-potatoes crime.

I’m not saying this is a slam-dunk charge. If it ever makes it to trial, Trump undoubtedly would raise defenses that he relied on his lawyers to investigate the facts and would claim that he believed what was in the complaint. But unlike so many of the New York and D.C. charges against Trump, this is an actual crime, it’s a simple crime, and it’s precisely the thing that the statute exists to prohibit.

Count Twenty-Nine: False Statements and Writings. The indictment charges a violation of O.C.G.A. § 16-10-20, which makes it a crime when any person “knowingly and willfully . . . makes a false, fictitious, or fraudulent statement or representation . . . in any matter within the jurisdiction of any department or agency of state government” in Georgia. This count seeks to criminalize 13 statements that Trump made on his notorious phone call with Georgia secretary of state Brad Raffensperger and his deputies:

1. That anywhere from 250,000 to 300,000 ballots were dropped mysteriously into the rolls in the November 3, 2020, presidential election in Georgia;

2. That thousands of people attempted to vote in the November 3, 2020, presidential election in Georgia and were told they could not because a ballot had already been cast in their name;

3. That 4,502 people voted in the November 3, 2020, presidential election in Georgia who were not on the voter-registration list;

4. That 904 people voted in the November 3, 2020, presidential election in Georgia who were registered at an address that was a post-office box;

5. That Ruby Freeman was a professional vote scammer and a known political operative;

6. That Ruby Freeman, her daughter, and others were responsible for fraudulently awarding at least 18,000 ballots to Joseph R. Biden at State Farm Arena in the November 3, 2020, presidential election in Georgia;

7. That close to 5,000 dead people voted in the November 3, 2020, presidential election in Georgia;

8. That 139 percent of people voted in the November 3, 2020, presidential election in Detroit;

9. That 200,000 more votes were recorded than the number of people who voted in the November 3, 2020, presidential election in Pennsylvania;

10. That thousands of dead people voted in the November 3, 2020, presidential election in Michigan;

11. That Ruby Freeman stuffed the ballot boxes;

12. That hundreds of thousands of ballots had been “dumped” into Fulton County and another county adjacent to Fulton County in the November 3, 2020, presidential election in Georgia;

13. That he won the November 3, 2020, presidential election in Georgia by 400,000 votes.

This seems much more of a gray-area charge that I would not have brought. True, Trump made false statements to the head of a government agency with jurisdiction over the integrity of elections. But first of all, the statements about Michigan and Pennsylvania were obviously not within Raffensperger’s jurisdiction, so a competent lawyer would have left them out of this laundry list. Second, this was basically Trump hectoring and pressuring Raffensperger politically, and everything we know about the call (and the extensive pushback by Raffensperger and his deputies) suggests that, by this late date in Trump’s election challenge, none of this was material because Raffensperger already knew — and told Trump that he knew — that this stuff was all nonsense.

Count Thirty-Nine: False Statements and Writings. This is a second charge under O.C.G.A. § 16-10-20 of a statement to Raffensperger, based on Trump’s telling him on September 17, 2021, that “as stated to you previously, the number of false and/or irregular votes is far greater than needed to change the Georgia election result.” That’s a reiteration of a prior statement, made long after the fact (eight months after Biden’s inauguration, when everybody knew that Raffensperger had investigated the matter and disagreed with Trump. It’s a charge no responsible prosecutor should bring.

The Conspiracy Charges

Trump was charged with six different counts of conspiracy to commit particular crimes: forgery, false statements, and impersonating a public officer. (Counts 9, 11, 13, 15, 17, and 19). All six charges assert, essentially, that the creation and filing of the slate of Trump electors was a fraud on the government of Georgia.

The problem with this, again — as with all of the federal and state efforts to criminalize the Trump-electors slates — is that it turns a political falsehood into a criminal one. Trump lost Georgia. His electors had no legal status. But everybody knew that. It was national news for two months. It was quite open and known that the electors were submitted as alternatives and that this would have no effect unless the relevant governing bodies (courts, the secretary of state, the governor, the state legislature, Congress) changed their minds and decided that Trump had won the state.

The old military saying applies to the law sometimes, too: Keep It Simple, Stupid. A one-count indictment charging Trump with a false court filing would have been a proper and proportional way to deal not generally with an offense against statesmanship and democratic norms, but specifically with abuse of the legal process. It was the hubristic insistence on throwing the kitchen sink at Trump — which, as a side benefit, protracted the case in ways that made Wade more money by its complexity and duration — that robbed that charge of its potency.